SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
August 4, 2011
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 11, 2010.
Foskey v Alcindor
Decided on August 4, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ
The order denied plaintiff's motion to vacate the dismissal of the action, which was based on his failure to appear at trial, and to restore the matter to the trial calendar.
ORDERED that the order is reversed, without costs, and plaintiff's motion to vacate the dismissal of the action and to restore the matter to the trial calendar is granted.
Plaintiff commenced this action to recover the sum of $8,283.63 for damage sustained to his vehicle when a vehicle owned by defendant collided with plaintiff's vehicle. Plaintiff failed to appear for trial on February 25, 2010, and the action, according to the Civil Court's calendar and database, was dismissed with prejudice based on plaintiff's nonappearance. However, the Civil Court's file jacket is stamped, "Dismissed with prejudice. Plaintiff could not prove prima facie case. No documents or witness." The Civil Court denied plaintiff's motion to vacate the dismissal of the action, stating that the action had already been dismissed on February 25, 2010. A review of the record indicates that the Civil Court mistakenly relied on the stamped entry on the court's file jacket, which erroneously stated that plaintiff had failed to establish a prima facie case. Accordingly, and as plaintiff set forth a reasonable excuse for his default and a meritorious cause of action (see CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 ; Martinez v Otis El. Co., 213 AD2d 523 ), the order is reversed and the motion to vacate the dismissal of the action and to restore the matter to the trial calendar is granted.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August 04, 2011
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